Legislature(2023 - 2024)BARNES 124

04/14/2023 01:00 PM House RESOURCES

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01:05:58 PM Start
01:06:45 PM HB120
01:21:56 PM HB104
01:34:25 PM Big Game Commercial Services Board
02:03:16 PM HB98
02:43:41 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed due to technical difficulties --
+= HB 120 HUNT/FISH LICENSE FOR NONRESIDENT STUDENT TELECONFERENCED
Moved HB 120 Out of Committee
-- Public Testimony --
+= HB 104 EXPEDITED TIMBER SALES TELECONFERENCED
Moved CSHB 104(RES) Out of Committee
+ Consideration of Governor’s Appointees: Big Game TELECONFERENCED
Commercial Services Board - Michael Flores; Board
of Game - Jacob Fletcher
-- Public Testimony --
+ HB 98 STATE OWNERSHIP OF SUBMERGED LAND TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
            HB  98-STATE OWNERSHIP OF SUBMERGED LAND                                                                        
                                                                                                                                
2:03:16 PM                                                                                                                    
                                                                                                                                
CHAIR MCKAY announced  that the final order of  business would be                                                               
HOUSE  BILL  NO. 98,  "An  Act  relating  to state  ownership  of                                                               
submerged land  underlying navigable water within  the boundaries                                                               
of and adjacent to federal  areas; and providing for an effective                                                               
date."                                                                                                                          
                                                                                                                                
2:03:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SADDLER,  prime sponsor  of HB 98,  introduced the                                                               
bill to the  committee.  He said  HB 98 seeks to  end the federal                                                               
government's decades-long,  unjust denial of a  fundamental right                                                               
of Alaska's statehood: control of  navigable waters in Alaska and                                                               
the  lands  beneath  them,  regardless of  whether  they  are  in                                                               
federal conservation  units or not.   He continued  to paraphrase                                                               
from the document  in the committee packet titled  "HB 98 Sponsor                                                               
Statement,"   which  read   as   follows  [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     The 1959  Statehood Act  transferred 105  million acres                                                                    
     of  federal  land  to Alaska.  In  addition,  the  U.S.                                                                    
     Constitution and federal law  also made the state owner                                                                    
     of navigable waters  and the lands beneath  them at the                                                                    
     instant of statehood.                                                                                                      
                                                                                                                                
     Navigable  waters are  the  lakes,  rivers and  streams                                                                    
     that  supported,  or  could  have  supported,  in-state                                                                    
     travel at  the time  of Statehood. They  provide travel                                                                    
     routes,  recreational  access,  hunting  opportunities,                                                                    
     aquatic habitat  and more,  and represent  corridors of                                                                    
     commercial travel critical  to Alaska's prosperity. All                                                                    
     other states  assumed undisputed control of  such lands                                                                    
     and  waters  inside  their  borders  upon  joining  the                                                                    
     Union.                                                                                                                     
                                                                                                                                
     Despite their obligation to  do so, federal authorities                                                                    
     have  dragged  their  heels in  granting  Alaska  clear                                                                    
     title to  its submerged lands. Instead,  they've forced                                                                    
     the state to  prove the navigability of  waterways on a                                                                    
     case-by-case basis  at a rate that  would take hundreds                                                                    
     of years to conclude.                                                                                                      
                                                                                                                                
     Enough  is   enough.  HB  98  simply   but  confidently                                                                    
     declares  Alaska's  title  to  the  beds  of  navigable                                                                    
     waters, including those  within federal parks, wildlife                                                                    
     refuges, forests  and other conservation  units, unless                                                                    
     specifically withdrawn before  Statehood. It identifies                                                                    
     and  enumerates water  bodies within  federal areas  in                                                                    
     which the  State has a  title interest. And  it directs                                                                    
     the Department  of Natural  Resources to  make progress                                                                    
     reports to the Legislature  on its continuing effort to                                                                    
     delineate navigable waters in federal areas in Alaska.                                                                     
                                                                                                                                
     The need  for this  bill is dramatized  by the  case of                                                                    
     Alaska  hunter John  Sturgeon, who  fought and  won two                                                                    
     U.S. Supreme  Court decisions clarifying  that Alaskans                                                                    
     have the  right to use navigable  waters inside federal                                                                    
     areas, and that federal  regulations do not trump state                                                                    
     ownership, even  in conservation  units created  by the                                                                    
     Alaska  National  Interest  Lands Conservation  Act  in                                                                    
     1980.                                                                                                                      
                                                                                                                                
REPRESENTATIVE SADDLER noted that  the Tongass National Forest is                                                               
one of those federal forest units withdrawn before statehood.                                                                   
                                                                                                                                
2:07:03 PM                                                                                                                    
                                                                                                                                
MARY  JACKSON, Staff,  Representative Dan  Saddler, Alaska  State                                                               
Legislature, on  behalf of Representative Saddler,  prime sponsor                                                               
of HB  98, pointed  out that  Section 9 is  the detailed  list of                                                               
waterways and comprises 83 of the  bill's 88 pages.  She provided                                                               
the committee with  hard copies of the  sectional analysis titled                                                               
"HB  98  Sectional Analysis,"  which  read  as follows  [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     Section  1    Amends  uncodified law  by  adding a  new                                                                  
     section to describe the purpose of the bill.                                                                               
                                                                                                                                
     Section 2    Amends AS 38.04.062(a) to Page  2, line 1,                                                                  
     revises  the phrase  "at the  time" to  become "on  the                                                                    
     date", and adds the  clause ', including submerged land                                                                    
     underlying  navigable   water  listed   in  AS   in  AS                                                                    
     38.04.063  that   is  within  the  boundaries   of  and                                                                    
     adjacent to  federal areas.' Provides clarity  that the                                                                    
     State  owns all  submerged lands  under navigable  from                                                                    
     the  date  of  statehood, including  lands  within  the                                                                    
     boundaries  of  sand  adjacent  to  federal  lands.  AS                                                                    
     38.04.062(a)   declares  that   'the  state   owns  all                                                                    
     submerged  land  underlying  navigable water  to  which                                                                    
     title  passed  to  the  state at  the  time  the  state                                                                    
     achieved statehood under the  equal footing doctrine or                                                                    
     43 U.S.C. 1301 - 1315 (Submerged Lands Act of 1953).'                                                                      
                                                                                                                                
     Section 3    Amends  AS 38.04.062(d)  by (Page  2, line                                                                  
     10), revising  the phrase "at  the time" to  become "on                                                                    
     the  date",  and  adds  the  following  sentence:  'The                                                                    
     commissioner   shall   conduct  ongoing   research   to                                                                    
     identify  submerged  land  underlying  navigable  water                                                                    
     within the boundaries of and  adjacent to federal areas                                                                    
     to  determine state  title  to corresponding  submerged                                                                    
     land underlying navigable water.'                                                                                          
                                                                                                                                
     Section  4    amends  AS 38.04.062(c)  by revising  the                                                                  
     phrase "at the time" to become "on the date".                                                                              
                                                                                                                                
     Section 5    amends AS 38.04.062(d)  by referencing the                                                                  
     list  of navigable  waters described  fully  in new  AS                                                                    
     38.04.063  and  revises the  phrase  "at  the time"  to                                                                    
     become "on the date".                                                                                                      
                                                                                                                                
     Section  6 -  Amends AS  38.04.062(e) by  inserting the                                                                  
     clause  '(b)  or  (c)  of   (new  section  3  and  4).'                                                                    
     Subsection   (e)   operates   as   a   disclaimer   for                                                                    
     determinations    of    navigability   by    the    DNR                                                                    
     commissioner,  providing that  they  do  not create  an                                                                    
     interest in real property, may  not be recorded, and do                                                                    
     not  constitute   final  agency  action.   Because  the                                                                    
     proposed edits  to AS 38.04.062 create  new obligations                                                                    
     for  the DNR  commissioner concerning  navigable waters                                                                    
     in  SA HB  98  3/15/23: maj  federal  areas, which  may                                                                    
     include  navigability  determinations made  because  of                                                                    
     administrative  or judicial  proceedings,  '(b) or  (c)                                                                    
     of' was  inserted before 'this section'  to distinguish                                                                    
     the  commissioner's   non-binding  determinations  from                                                                    
     determinations that have binding effect.                                                                                   
                                                                                                                                
     Section  7    amends  by revising  the  phrase "at  the                                                                  
     time" to become "on the date".                                                                                             
                                                                                                                                
     Section  8 -  Adds  new  subsections (h)  -  (j) to  AS                                                                  
     38.04.062 that  creates an obligation on  DNR to report                                                                    
     annually  to the  legislature. Subsection  (h) requires                                                                    
     the  commissioner to  submit an  annual  report to  the                                                                    
     legislature by  the first day  of each  regular session                                                                    
     identifying navigable  waters within the  boundaries of                                                                    
     and adjacent  to federal areas  that are not  listed in                                                                    
     AS  38.04.063(b) and  any modifications  or changes  to                                                                    
     navigable waters within the  boundaries of and adjacent                                                                    
     to federal  areas that have been  previously identified                                                                    
     and listed  in AS 38.04.063(b) Subsection  (i) provides                                                                    
     that the commissioner's failure  to include or identify                                                                    
     navigable  waters in  accordance with  the requirements                                                                    
     of AS 38.04.062 does not  relinquish any state right in                                                                    
     the submerged lands  underlying those navigable waters.                                                                    
     Subsection  (i) is  intended  to  preserve the  state's                                                                    
     rights  to  submerged  lands. Subsection  (j)  provides                                                                    
     that a  navigability determination of  the commissioner                                                                    
     is based on evidence  consistent with the definition of                                                                    
     'navigable water' at  AS 38.04.062(g) and consideration                                                                    
     of the factors listed in AS 38.04.062(j)(1-4).                                                                             
                                                                                                                                
     Section 9 - Amends AS 38.04  by adding a new section AS                                                                  
     38.04.063  concerning  state   ownership  of  submerged                                                                    
     within  federal areas.  This section  makes clear  that                                                                    
     since   statehood,  that   the   State  owns,   claims,                                                                    
     occupies,   possesses,   manages,  and   controls   all                                                                    
     submerged lands  underlying navigable waters  listed in                                                                    
     (b) of this new section  of statute, except as provided                                                                    
     under AS 38.04.062(f).  It further identifies navigable                                                                    
     waterbodies  that   are  currently  known   within  the                                                                    
     boundaries  of  and  adjacent to  federal  areas.  This                                                                    
     section  was drafted  to  model  existing AS  19.30.400                                                                    
     which  codifies state  claims of  rights-of-way granted                                                                    
     under  former 43  U.S.C.  932  (Revised Statute  2477).                                                                    
     Page 4 to page 87.                                                                                                         
                                                                                                                                
     Section  10  -  Amends   AS  38.04.910  by  adding  new                                                                  
     paragraphs   for   definitions,  renumbering   existing                                                                    
     definitions,  and   adding  proposed   definitions  for                                                                    
     'federal areas,'  'mean high  water,' 'mean  high water                                                                    
     line,'  'ordinary  high  water  mark,'  and  'submerged                                                                    
     land.'                                                                                                                     
                                                                                                                                
     Section  11    repeals  existing  38.04.06(g) which  is                                                                  
     current definition.                                                                                                        
                                                                                                                                
     Section 12 - Amends the  uncodified law of the state to                                                                  
     add a new section providing  that Section 9 of the bill                                                                    
     is  retroactive  to January  3,  1959.  This bill  will                                                                    
     require a special vote of  two-thirds of the members of                                                                    
     each house  because the proposed  retroactive effective                                                                    
     date  for   this  section  varies  from   the  standard                                                                    
     language providing for an effective  date 90 days after                                                                    
     enactment.                                                                                                                 
                                                                                                                                
     Section 13  - Provides for an  immediate effective date                                                                  
     under AS 01.10.070(c).                                                                                                     
                                                                                                                                
2:08:38 PM                                                                                                                    
                                                                                                                                
BRENT GOODRUM,  Deputy Commissioner, Office of  the Commissioner,                                                               
Department of Natural  Resources (DNR), testified in  favor of HB
98.   He explained  that oftentimes  the federal  government does                                                               
not take a position on the  ownership of submerged lands and does                                                               
not  say  that  it  explicitly has  ownership  interest,  thereby                                                               
denying the  State of Alaska the  ability to bring a  quiet title                                                               
action in  federal court because  such an action requires  a case                                                               
or  controversy.    He  said  HB 98  would  flip  the  script  by                                                               
codifying  the  navigable  water   bodies  in  federal  areas  as                                                               
navigable-in-fact for  title purposes.   The  federal government,                                                               
he continued,  would be put  on formal  notice that the  State of                                                               
Alaska owns  these submerged  lands and  intends to  manage these                                                               
water  bodies  even  though   they  flow  through  post-statehood                                                               
federal conservation system units (CSUs).   The burden would then                                                               
be on  the federal government,  he specified, to gather  data and                                                               
to find  resolution if  it disagrees  with the  state's position.                                                               
Federal CSU enforcement officers, he  added, wouldn't be to carry                                                               
out federal action  or enforcement by saying  that an affirmative                                                               
decision or  determination hasn't been  made.  He  referenced two                                                               
unanimous US Supreme Court decisions  on that point in the matter                                                               
of Sturgeon v. Frost.                                                                                                           
                                                                                                                                
MR. GOODRUM  pointed out that the  state has waited 64  years for                                                               
federal authorities to determine  the navigability of the state's                                                               
water bodies.  He said the  current status quo of uncertainty and                                                               
ambiguity of  ownership, management,  and control of  the state's                                                               
navigable water  bodies is  not in the  state's or  anyone's best                                                               
interest.  The  time is now for  the State of Alaska  to flip the                                                               
script,  he opined,  and to  decisively identify  and codify  the                                                               
state's navigable rivers and lakes.                                                                                             
                                                                                                                                
2:12:00 PM                                                                                                                    
                                                                                                                                
The  committee took  a brief  at-ease to  deal with  sound system                                                               
technicalities.                                                                                                                 
                                                                                                                                
2:12:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PATKOTAK  inquired   about  the  administration's                                                               
intended  end consequence  for vessel  traffic through  navigable                                                               
waters and the potential for  political subdivisions of the State                                                               
of Alaska to take some  degree of permitting authority for access                                                               
to navigable waters.                                                                                                            
                                                                                                                                
MR.  GOODRUM related  the  state's belief  that  under the  equal                                                               
footing  doctrine,   all  navigable   waters  within   the  state                                                               
rightfully vested  with the  state as  of 1959,  but to  date the                                                               
federal  government  hasn't  acknowledged the  state's  ownership                                                               
rights.   Ownership  rights,  he explained,  give  the state  the                                                               
ability to manage the resources  beneath those submerged lands as                                                               
well as  the activity  above them  regarding transportation.   He                                                               
related that  when Mr. Sturgeon  was using his hovercraft  on the                                                               
Nation River, a river that  had already been determined navigable                                                               
in a  federal court, Mr. Sturgeon  believed he was on  state land                                                               
and  therefore  state  regulations   applied  as  opposed  to  US                                                               
National  Park  Service  regulations that  prohibited  hovercraft                                                               
from  operating within  [national]  parks.   Mr. Goodrum  further                                                               
related that the water body Mr.  Sturgeon was on was an inholding                                                               
within a [national] park.                                                                                                       
                                                                                                                                
REPRESENTATIVE PATKOTAK asked whether  the intent with passage of                                                               
HB 98  is that  subdivisions like a  municipality or  borough can                                                               
assume the  authority that the  state is assuming if  it's within                                                               
their first-class status or not.                                                                                                
                                                                                                                                
MR. GOODRUM responded that he believes  the intent of HB 98 is to                                                               
verify that the  State of Alaska is the rightful  entity, and the                                                               
state would be the one determining  what types of access would be                                                               
appropriate on those water bodies.                                                                                              
                                                                                                                                
2:16:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MCCABE  requested  the definition  of  "navigable                                                               
waters" for the purposes of what HB 98 would do.                                                                                
                                                                                                                                
MR. GOODRUM  answered that court  rulings have  defined navigable                                                               
water as  those on  which customary  and ordinary  vessels [could                                                               
navigate] for travel, trade travel,  or commerce within the state                                                               
as  of statehood.    He deferred  to Mr.  Jim  Walker to  provide                                                               
further definition.                                                                                                             
                                                                                                                                
MR.  GOODRUM,  in  further  response  to  Representative  McCabe,                                                               
confirmed that  the crux of HB  98 is to expedite  the ability to                                                               
declare a  body of water  navigable so that everyone  knows whose                                                               
water it is  and there isn't another court case  like that of Mr.                                                               
Sturgeon's.                                                                                                                     
                                                                                                                                
2:18:53 PM                                                                                                                    
                                                                                                                                
JIM  WALKER, Chief,  Public Access  Assertion  & Defense  Section                                                               
(PAAD), Division of Mining, Land  and Water (DMLW), Department of                                                               
Natural  Resources  (DNR),  provided  a  PowerPoint  presentation                                                               
titled "State Ownership  of Submerged Lands House  Resources   HB
98," dated  4/14/23.  He said  he would like to  phrase the issue                                                               
of why  these navigable  waters are so  important.   He addressed                                                               
slide  2, "The  Navigable Waters  Issue," which  read as  follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     •  Alaska holds an estimated 800,000 miles of navigable                                                                  
        rivers                                                                                                                
     •  Alaska  holds  an  estimated  30  million  acres  of                                                                  
        navigable lakes                                                                                                       
     •  Alaska  owns  the  submerged   lands  beneath  every                                                                    
        navigable-in-fact  river   and  lake,   and  beneath                                                                    
        tidally influenced  waters in  the  state, unless  a                                                                    
        valid pre-statehood  withdrawal  EXPLICITLY  defeats                                                                    
        state title                                                                                                             
     •  In Federal Conservation System Unit areas created in                                                                    
        Alaska post-statehood,  the submerged  lands beneath                                                                    
        navigable-in-fact and tidally influenced  waters are                                                                  
        State-owned lands                                                                                                     
                                                                                                                                
MR. WALKER maintained that in most  federal areas it is the State                                                               
of Alaska,  not the federal  government, that owns  the submerged                                                               
lands under navigable  waters and tidally influenced  waters.  He                                                               
spoke to slide  3, "Federal Areas Where the State  of Alaska Owns                                                               
Submerged  Lands," which  read as  follows [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     •  National  Park  Service:  Noatak  National  Preserve                                                                  
        (NPr), Kobuk Valley National Park  (NP), Bering Land                                                                    
        Bridge NPr, Denali National Park  and Preserve (NPP)                                                                    
        (ANILCA additions), Wrangell-St. Elias  NPP, Glacier                                                                    
        Bay NPP, Katmai NPP,  Kenai Fjords NP, Gates  of the                                                                    
        Arctic NPP,  Lake  Clark  NPP, Yukon-Charley  Rivers                                                                    
        NPr, etc.                                                                                                               
     •  U.S. Fish and  Wildlife Service:   Becharof National                                                                  
        Wildlife Refuge  (NWR),  Innoko  NWR,  Izembek  NWR,                                                                    
        Kanuti NWR,  Kenai  NWR,  Kodiak NWR,  Koyukuk  NWR,                                                                    
        Nowitna NWR,  Selawik NWR,  Tetlin NWR,  Togiak NWR,                                                                    
        Yukon Delta NWR, Yukon Flats NWR, etc.                                                                                  
     •  U.S.  Forest   Service:  Tongass   National  Forest,                                                                  
        Chugach National Forest                                                                                                 
     •  Bureau of  Land Management:  Beaver  Creek Wild  and                                                                  
        Scenic River (WSR), Birch Creek WSR, Fortymile River                                                                    
        WSR, Gulkana River WSR, Unalakleet  River WSR, Delta                                                                    
        River WSR, etc.                                                                                                         
                                                                                                                                
2:22:53 PM                                                                                                                    
                                                                                                                                
MR. WALKER discussed  slide 4, "Status of Efforts  to Clear Title                                                               
1959  to Present,"  which read  as follows  [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
       The federal government acknowledges Alaska's clear                                                                       
     title to its submerged lands beneath navigable-in-fact                                                                     
     and tidally influenced rivers and lakes in only:                                                                           
                                                                                                                                
        • 9 percent of 800,000 river miles of submerged                                                                       
          lands under state-owned rivers                                                                                        
                                                                                                                                
        • 16 percent of 30,000,000 acres of submerged lands                                                                   
          under state-owned lakes                                                                                               
                                                                                                                                
MR. WALKER,  in reference to  the importance of  state ownership,                                                               
said  it will  take  hundreds  of years  at  this  rate [for  the                                                               
federal  government   to  acknowledge   the  State   of  Alaska's                                                               
ownership].  He spoke to slide  5, "Sturgeon vs. Frost 136 S. Ct.                                                               
1061 (2016)  & 139  S. Ct.  1066 (2019),"  which read  as follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
    U.S.   Supreme   Court   rules   unanimously:   federal                                                                   
         regulations do not supersede SOA ownership and                                                                       
     management of navigable waters in ANILCA CSUs                                                                            
                                                                                                                                
MR.  WALKER addressed  the bubble  chart on  slide 6,  "Statehood                                                               
Defense   of   Navigable   Waters  Involves   Many   Interrelated                                                               
Assertions of  State Ownership and  Authority."  He  related that                                                               
DNR  and  the  Department  of  Law  (DOL)  are  working  together                                                               
attempting to  fulfill the promises  of statehood,  which include                                                               
the equal  footing doctrine  and other federal  law that  say the                                                               
state owns  these submerged lands.   He specified that  the state                                                               
has   intensified  [quiet   title]  litigation   against  federal                                                               
authorities  and  has  intensified management  action  and  state                                                               
mapping  of navigable  waters.   He submitted  that legislatively                                                               
codifying state ownership of submerged  lands in federal lands is                                                               
key to expediting state ownership.                                                                                              
                                                                                                                                
2:25:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  RAUSCHER inquired  about who  currently owns  the                                                               
submerged lands under man-made lakes or ponds.                                                                                  
                                                                                                                                
MR. WALKER replied that free-flowing  water impounded to create a                                                               
pond or lake is never owned  privately, the water is owned by the                                                               
people  of   Alaska  pursuant  to  the   public  trust  doctrine.                                                               
However,  he  continued, when  impounding  water  and creating  a                                                               
larger footprint  of submerged land, that  submerged land doesn't                                                               
necessarily  belong to  the State  of Alaska.   The  water itself                                                               
belongs  to the  public, he  advised, but  whether the  submerged                                                               
land is  in public  or private  ownership is  going to  depend on                                                               
case specific information.                                                                                                      
                                                                                                                                
2:27:41 PM                                                                                                                    
                                                                                                                                
MR. WALKER  resumed DNR's presentation  for HB  98.  He  spoke to                                                               
slide  7,  "Proposed  Codification Legislation  Overview,"  which                                                               
read as follows [original punctuation provided]:                                                                                
                                                                                                                                
    1. Codifies State of Alaska (SOA) ownership, management                                                                     
        and control of navigable waters  and submerged lands                                                                    
        within federal  areas not  covered by  a valid  pre-                                                                    
        statehood  withdrawal  explicitly   defeating  state                                                                    
        title                                                                                                                   
                                                                                                                                
     2. Lists specific navigable waters and submerged lands                                                                     
        in federal areas statewide belonging to SOA                                                                             
                                                                                                                                
     3. Enshrines foundational elements of relevant caselaw                                                                     
        to guide in navigability determinations                                                                                 
                                                                                                                                
    4. Establishes   annual   reporting    requirement   to                                                                     
        legislature                                                                                                             
                                                                                                                                
MR.   WALKER   discussed    slide   8,   "Proposed   Codification                                                               
Legislation,"  which   read  as  follows   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
      1. Codifies SOA ownership, management and control of                                                                      
        navigable waters and submerged lands within federal                                                                     
        areas not covered by a valid pre-statehood                                                                              
        withdrawal explicitly defeating state title                                                                             
                                                                                                                                
          • Underscore state ownership, management and                                                                        
             control of lands owned by the state since                                                                        
             statehood                                                                                                          
          • Clarify and educate: Clearly enumerates the                                                                       
             extent of state management authority within                                                                        
             federal boundaries                                                                                                 
          • Increases public understanding and aids in                                                                          
             management                                                                                                         
          • Correlates with publicly maintained records and                                                                     
             maps                                                                                                               
          • Reflect reality: Accurately depicts land                                                                          
             ownership and state boundaries with ongoing                                                                        
             quality control                                                                                                    
                                                                                                                                
MR.  WALKER  expounded  that  the first  phase     codifying  the                                                               
state's ownership    clarifies for the  public, federal agencies,                                                               
and state adjudicators  as to exactly what the state  owns.  This                                                               
educational aspect  of the  legislation, he  said, will  make the                                                               
job easier  and more efficient  for the state's  adjudicators for                                                               
permit  applications  and  will  clarify  in  the  public's  mind                                                               
whether a  person needs  to apply  to the state  for a  permit or                                                               
whether  it falls  within federal  jurisdiction.   This bill,  he                                                               
added, will reflect  reality on what is  navigable within federal                                                               
areas and plants the state's flag onto state-owned lands.                                                                       
                                                                                                                                
2:30:39 PM                                                                                                                    
                                                                                                                                
Mr.  Walker  paraphrased  from slide  9,  "Proposed  Codification                                                               
Legislation,"  which   read  as  follows   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     2. Lists specific navigable waters and submerged lands                                                                     
        in federal areas statewide belonging to SOA                                                                             
                                                                                                                                
        • First phase: All NPS and USFS areas statewide                                                                       
          plus Tetlin National Wildlife Refuge                                                                                  
        • Second phase: Remaining USFWS refuges                                                                               
        • Third phase: All BLM lands                                                                                          
        • Fourth phase: Ongoing process of clarification,                                                                     
          modification and amendment                                                                                            
                                                                                                                                
      Framework for proposed statute is based upon RS 2477                                                                      
         Right-of-Way codification project in 1990s [AS                                                                         
     19.30.400].                                                                                                                
                                                                                                                                
MR.  WALKER elaborated  that in  the  second phase,  the list  of                                                               
specific navigable rivers will become  longer if HB 98 is passed.                                                               
He  related that  five members  of  his team  have been  studying                                                               
aerial imagery,  prior navigability  reports prepared  by federal                                                               
authorities,  and  looking  at historical  records  of  usage  to                                                               
assess where the  navigable waters are within federal  areas.  So                                                               
far,  he said,  the team  has completed  its studies  of National                                                               
Park Service  (NPS) and US  Forest Service (USFS) areas,  and one                                                               
US Fish  and Wildlife  Service (USFWS)  refuge.   If the  bill is                                                               
passed, he  continued, [PAAD] will  hopefully have  concluded its                                                               
work on  USFWS refuges  and will come  before the  committee next                                                               
session to ask for the addition  of the navigable rivers found in                                                               
those refuges.   Mr.  Walker stated his  hope that  the following                                                               
year [PAAD] would again come before  the committee to ask for the                                                               
addition of  the navigable waters  and tidally  influenced waters                                                               
within  US  Bureau  of Land  Management  (BLM)  areas  statewide.                                                               
Afterwards, he  specified, DNR would have  ongoing responsibility                                                               
to come back  to the legislature with corrections  and updates to                                                               
the list  within statute.   He added  that DNR would  maintain an                                                               
online digital map that uses  the bill's proposed framework which                                                               
is based  upon RS  2477 right-of-way so  the public  and agencies                                                               
would be able to see exactly what the state owns.                                                                               
                                                                                                                                
2:34:08 PM                                                                                                                    
                                                                                                                                
MR.  WALKER displayed  slide  10,  "State-Owned Navigable  Waters                                                               
Federally-Acknowledged  to Date,"  a map  of  rivers and  federal                                                               
areas in  Alaska.   He explained  that the  rivers shown  in blue                                                               
represent  places where  there is  a grievance,  and the  federal                                                               
government  has   acknowledged  state  ownership.     The  rivers                                                               
depicted  in pink  represent  the rivers  for  which the  federal                                                               
government  has yet  to decide,  he further  explained, so  until                                                               
such time as  it appoints a determination  the federal government                                                               
is continuing to act like these rivers are not navigable.                                                                       
                                                                                                                                
2:37:06 PM                                                                                                                    
                                                                                                                                
MR. WALKER addressed the map  on slide 11, "State-owned Navigable                                                               
Waters after proposed  codification."  He explained  that the map                                                               
depicts [all the navigable waters]  currently included within the                                                               
[proposed] statute, such that many  of the pink areas have become                                                               
blue.  He said [PAAD]  undertook its own navigability assessments                                                               
by  applying the  standards  in federal  law  to determine  which                                                               
waters are truly navigable-in-fact and tidally influenced.                                                                      
                                                                                                                                
MR. WALKER  proceeded to the map  on slide 12, "Noatak  and Kobuk                                                               
Valley National  Parks Federally-Acknowledged  Navigable Waters."                                                               
The  federal   government,  he  noted,  has   acknowledged  state                                                               
ownership of the  Kobuk River [shown in blue] as  it runs through                                                               
Kobuk  Valley  National  Park  (shown in  green).    The  federal                                                               
government,  he continued,  has also  acknowledged partial  state                                                               
ownership of  the Noatak River [shown  in blue and purple]  as it                                                               
runs  the Noatak  National  Preserve  (shown in  tan).   He  drew                                                               
attention  to the  confluence  of the  Noatak  and Aniuk  rivers,                                                               
shown in [purple],  and advised that the  federal government says                                                               
this area is  not navigable despite being  approximately 300 feet                                                               
wide and flowing  at a rate of over 3,000  cubic feet per second.                                                               
He said the  State of Alaska will file litigation  in this regard                                                               
later this year or in early 2024.                                                                                               
                                                                                                                                
2:38:52 PM                                                                                                                    
                                                                                                                                
MR. WALKER specified  that HB 98 looks at the  waters depicted in                                                               
pink on the map and  which [PAAD] will assess [for navigability].                                                               
He moved  to slide  13, "Noatak and  Kobuk Valley  National Parks                                                               
Navigable Waters After  Codification," and said that  under HB 98                                                               
each of the waters depicted in  blue would be owned, managed, and                                                               
controlled by the State of Alaska.                                                                                              
                                                                                                                                
CHAIR MCKAY remarked that that is a stunning difference.                                                                        
                                                                                                                                
MR.   WALKER   reviewed    slide   14,   "Proposed   Codification                                                               
Legislation,"  which   read  as  follows   [original  punctuation                                                               
provided with some formatting changes]:                                                                                         
                                                                                                                                
     3. Enshrines foundational elements of relevant caselaw                                                                     
        to guide in navigability determinations                                                                                 
                                                                                                                                
        Susceptibility criteria to guide DNR in making                                                                        
        navigability determinations includes, but is not                                                                      
        limited to:                                                                                                           
        o Watercraft Type: Round raft, Canoe, Jon boat, Jet                                                                     
              1                                                                                                                 
          boat                                                                                                                  
        o Susceptibility: Documented modern day use is                                                                          
                    2                                                                                                           
          sufficient                                                                                                            
        o Navigability doesn't require a clear channel,                                                                         
          two-way traffic, or historical evidence if the                                                                        
                                            3                                                                                   
          river is susceptible to navigation                                                                                    
                                                                                                                                
     1                                                                                                                          
     Alaska v. Ahtna, Inc., 891 F. 2d 1401 (9th Cir. 1989)                                                                      
     (Gulkana River)                                                                                                            
     2                                                                                                                          
      Alaska v. United States, Case No. 3:12-cv-00114-SLG                                                                       
     (D. Alaska 2016) (Mosquito Fork (Fortymile) River)                                                                         
     3                                                                                                                          
      PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012);                                                                      
        Utah v. United States, 403 U.S. 9 (1971); United                                                                        
     States v. Utah, 283 U.S. 64 (1931)                                                                                         
                                                                                                                                
2:40:50 PM                                                                                                                    
                                                                                                                                
MR.  WALKER paraphrased  from  slide  15, "Proposed  Codification                                                               
Legislation,"  which   read  as  follows   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     1. Enshrines foundational elements of  relevant caselaw                                                                    
        to guide in navigability determinations                                                                                 
                                                                                                                                
        • Section Ten:                                                                                                          
          o Define geographical scope of legislation                                                                          
             square4 Post-statehood federal area                                                                                
          o Define key navigability terms for purposes of                                                                     
             legislation including                                                                                            
             square4 Mean high water                                                                                            
             square4 Mean high water line                                                                                       
             square4 Navigable water                                                                                            
             square4 Ordinary high-water mark                                                                                   
             square4 Submerged land                                                                                             
                                                                                                                                
MR. WALKER referenced  Representative Patkotak's earlier question                                                               
and said  HB 98  specifically only  covers federally  owned lands                                                               
managed by  federal authorities.   The bill,  he added,  does not                                                               
address Native corporation lands or private property in any way.                                                                
                                                                                                                                
MR.   WALKER   addressed   slide   16,   "Proposed   Codification                                                               
Legislation,"  which   read  as  follows   [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     4. Establishes   annual   reporting    requirement   to                                                                    
        legislature                                                                                                             
                                                                                                                              
     Charges  DNR  with  responsibility to  conduct  ongoing                                                                  
     navigability  research  to  determine  state  title  to                                                                  
     submerged lands within relevant federal areas                                                                            
                                                                                                                                
     •  Ensures non-exhaustive  codified list  best reflects                                                                    
        reality                                                                                                                 
        o Ensures public facing document is accurate                                                                            
     •  Further refinement  and  fine  tuning as  our  quiet                                                                    
        title litigation continues                                                                                              
     •  Provides leadership  to  federal  authorities and  a                                                                    
        path forward to settle ambiguity so that land                                                                           
        management benefiting the public will follow                                                                            
                                                                                                                                
MR. WALKER  concluded his PowerPoint presentation  with slide 17,                                                               
"Proposed   Legislation,"  which   read   as  follows   [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     Alaska's   ownership   of   Submerged   Lands   beneath                                                                    
     navigable-in-fact  and  tidally influenced  rivers  and                                                                    
     lakes is one of the fundamental promises of Statehood.                                                                     
                                                                                                                                
         It's been 64 years. It is time for the Federal                                                                         
     Government to keep its promise to the State of Alaska.                                                                     
     HB98 is a bold step in that direction.                                                                                   
                                                                                                                                
CHAIR MCKAY announced that HB 98 was held over.                                                                                 

Document Name Date/Time Subjects
3.8.23 Michael Flores Big Game Resume_Redacted.pdf HRES 4/14/2023 1:00:00 PM
3.8.23 Michael Flores Big Game App_Redacted.pdf HRES 4/14/2023 1:00:00 PM
3.31.23 Jacob Fletcher BOG App_Redacted.pdf HRES 4/14/2023 1:00:00 PM
3.31.23 Jacob Fletcher BOG Resume_Redacted.pdf HRES 4/14/2023 1:00:00 PM
HB 98 DNR DMLW State Ownership of Submerged Lands Presentation 04.14.2023.pdf HRES 4/14/2023 1:00:00 PM
HB 98
HB 98 - Sponsor Statement.pdf HJUD 3/29/2023 1:00:00 PM
HRES 4/14/2023 1:00:00 PM
HB 98
HB 98 - Sectional Analysis.pdf HJUD 3/29/2023 1:00:00 PM
HRES 4/14/2023 1:00:00 PM
HB 98
HB 98 - SCI AK Supporting Document.pdf HRES 4/14/2023 1:00:00 PM
HB 98
HB 98 - 40 Mile Letter of Support.pdf HJUD 3/29/2023 1:00:00 PM
HRES 4/14/2023 1:00:00 PM
HB 98
HB 98 - Dept. of Law Federal Laws & Litigation Report 2023.pdf HJUD 3/29/2023 1:00:00 PM
HRES 4/14/2023 1:00:00 PM
HB 98
CSHB104(RES).pdf HRES 4/14/2023 1:00:00 PM
HB 104
HB 104 Summary of Changes (B to U).pdf HRES 4/14/2023 1:00:00 PM
HB 104
HB 104 DOF briefing paper timber sale process.pdf HRES 4/14/2023 1:00:00 PM
HB 104
HB 104 Fiscal Note.pdf HRES 4/14/2023 1:00:00 PM
HB 104